AYESHA A. MALIK, J. These Civil Appeals have arisen out of order dated 05.05.2004, passed by the Lahore High Court, Lahore (High Court) in C.Ms. Nos. 1216-C to 1218-C of 2003 in Regular First Appeal No.157 of 1989, being applications under section 12(2) of the Code of Civil Procedure, 1908 (C.P.C.), which were dismissed. Leave to Appeal was granted by this Court vide order dated 13.07.2009.
2. The dispute between the parties is with reference to property No.127 measuring 19 Kanals 59 square feet located in Survey No. 59, Haider Road, Sialkot Cantonment. Respondent No.1, Faiz Ahmad, filed a suit for specific performance on 07.05.1988 against Respondent No.2, Sheikh Muhammad Saleem (now deceased) based on an agreement to sell dated 22.10.1985 regarding property measuring 19 Kanals 59 square feet. This suit was dismissed by the Civil Judge 1st Class, Sialkot vide judgment dated 15.06.1989, which was challenged before the High Court by way of filing R.F.A. No.157 of 1989 on 17.09.1989. The appeal was partly allowed vide judgment dated 13.03.2001 and the suit of Faiz Ahmad was decreed to the extent of 11 Kanals subject to payment of Rs.
1,215,789.47 with a direction to Respondent No.1 to deposit the aforesaid amount in the trial court within two months after deducting Rs.50,000/, already paid to Sheikh Muhammad Saleem. Against this judgment dated 13.03.2001, Respondent No.2, Sheikh Muhammad Saleem, filed Civil Appeal No.656 of 2001 before this Court, which was dismissed on 15.05.2001 for being barred by time by a two member Bench. Thereafter, a review petition was filed on the ground that since the R.F.A. had been decided by a Division Bench of the High Court, the matter should have been heard by a three member Bench. The review petition was allowed and the matter was heard by a three member Bench which dismissed the appeal on 04.04.2003 for being barred by time. Another review petition i.e., C.R.P. No. 35 of 2003 was filed against the said judgment which was also dismissed on 15.04.2008. In the meantime, the Appellant, Sheikh Muhammad Iftikhar Ahmad, filed two applications under section 12(2) of the C.P.C. (C.Ms. Nos. 1216-C and 1218-C of 2003) on 10.07.2003, claiming therein that he is the owner of two plots i.e., plot Nos. 29 and 30 in property No.127, both measuring 740 square yards. The Appellant, Sheikh Muhammad Iftikhar Ahmad, claims that on 27.11.2000 he purchased these properties from Kaleem Saleem and Najam Waseem, both sons of Sheikh Muhammad Saleem as he gifted 19 Kanals to his sons, in March 2000. Uzma Rehman, Appellant in C.A. No.546-L of 2009, also filed an application under section 12(2) of the C.P.C. (C.M.
No.1217-C of 2003) claiming that she purchased plot Nos.27 and 28, in property No.127, each measuring 800 square yards from Sheikh Muhammad Saleem on 05.04.2000. These applications were dismissed by the High Court vide impugned order dated 05.05.2004 on the ground that no fraud or misrepresentation had been played against the Court and that the sale in favour of Sheikh Muhammad Iftikhar Ahmad and Uzma Rehman is hit by the principle of lis pendens given that Sheikh Muhammad Saleem sold the property during the pendency of R.F.A. No.157 of 1989 before the High Court.
3. Counsel for the Appellants argued that the Appellants are bona fide purchasers, who paid full consideration, and the property has been transferred to them and that the sale was completed as per the requirements of the cantonment authorities. It is their case that Sheikh Muhammad Saleem and his sons, Kaleem Saleem and Najam Waseem, sold the property to them and that, if at all, there was any litigation with reference to the property, they had no knowledge of the same, hence, they played fraud with them. Learned counsel has also argued with reference to the merits of the case pertaining to Faiz Ahmad that in fact the original suit which was dismissed on 15.06.1989 was wrongfully dismissed as Faiz Ahmad had actually performed his part of the agreement to sell and that the conclusion of the trial court in its judgment dated 15.06.1989 that Faiz Ahmad had not completed his part of the bargain is without any merit.
4. We have heard the learned counsel for the Appellants at length, however, find no merit in their case as admittedly, they claim to have purchased the property from Sheikh Muhammad Saleem and his sons Kaleem Saleem and Najam Waseem on 05.04.2000 and 27.11.2000, respectively, at which time neither Sheikh Muhammad Saleem nor his sons could have sold the property given that an appeal with respect to the same property was pending and that the appeal was allowed on 13.03.2001 to the extent of 11 Kanals in favour of Faiz Ahmad. During, the appellate proceedings, it transpired that Sheikh Muhammad Saleem sold 8 Kanals of land to some other persons and retained 11 Kanals of land. Hence, the trial court upheld the sale in favour of those persons on the ground that they had no knowledge of any agreement to sell in favour of Faiz Ahmad and that sale had been executed in their favour by Sheikh Muhammad Saleem, once Faiz Ahmad failed to execute his part of the bargain. It is important to note that Sheikh Muhammad Saleem filed an appeal before this Court and his appeal was dismissed and any claim to be owner of 19 Kanalas of land was put to rest finally by this Court in its judgment dated 04.04.2003.
5. Essentially, no case under section 12(2) of the C.P.C. is made out by the Appellants because no fraud was played on the Court. If there is any fraud, at best, it is inter se the parties which does not attract the provisions of section 12(2) of the C.P.C. Section 12(2) of the C.P.C. requires that fraud or misrepresentation be played on the court and that consequently the order obtained is through fraud or mis-representation.
In this context, the applications under section 12(2) of the C.P.C. were filed against judgment dated 13.03.2001, being the Appellate Court judgment, in favour of Faiz Ahmad and no case of fraud or mis-representation is made out in that case against Sheikh Muhammad Saleem. The argument here is that Sheikh Muhammad Saleem deliberately did not inform the Court that he actually sold the land during the pendency of the appeal to the Appellants. However, this does not fall within the mandate of section 12(2) of the C.P.C. and, at best, is a fraud inter se the parties.
6. Furthermore, the rule of lis pendens is attracted in these cases as the transfer of the disputed property in favour of Sheikh Muhammad Iftikhar Ahmad and Uzma Rehman took place during the pendency of the appeal, which means that the sale, at best, in favour of the Appellants is subject to the final outcome of the litigation and they cannot claim any independent right to the property.
This Court has already held in the case reported as Muhammad Ashraf Butt v. Muhammad Asif Batti and others (PLD 2011 SC 905) that the principle of lis pendens shall be applicable when one purchases from a party pending a suit where the same property is the subject matter and consequently, the parties are bound by the final decision notwithstanding any intermediate alienation of the property.
7. In view of the above, we find no illegality in the impugned order. The civil appeals are, therefore, dismissed with no order as to costs.